ML20236V246

Memorandum & Order (Opportunity for Comments on Commission Policy Statement on Conduct of Adjudicatory Proceedings).* Commission Invites Parties on or Before 980810 to File Any Further Comments.W/Certificate of Svc.Served on 980731

ML20236V246
Person / Time
Site:	07200022
Issue date:	07/31/1998
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	AFFILIATION NOT ASSIGNED, External (Affiliation Not Assigned), NRC OFFICE OF THE GENERAL COUNSEL (OGC), SKULL VALLEY BAND OF GOSHUTE INDIANS, UTAH, STATE OF
References
CON-#398-19373 97-732-02-ISFSI, 97-732-2-ISFSI, CLI-98-12, CLI-98-13, ISFSI, NUDOCS 9808030032
Download: ML20236V246 (14)

Text

__ -_ __ _ - _ _ _

t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

ATOMIC SAFETY"AND LICENSING BOARD 36 JUL31A8:45 Before Administrative Judges:

G. Paul Bollwerk, III, Chairman OFFIG D? SEE > m RULSJwn , :0 Dr. Jerry R. Kline ADJUD U . " ONF Dr. Peter S. Lam ,

L SERVED jut 31199s In the Matter of Docket No. 72-22-ISFSI PRIVATE FUEL STORAGE, L.L.C. ASLBP No. 97-732-02-ISFSI (Independent Spent Fuel July 31, 1998 Storage Installation)-

MEMORANDUM AND ORDER (Opportunity for Comments on Commission Policy Statement on Conduct of Adjudicatory Proceedings)

In a June 29, 1998 memorandum and order, the Board provided_a general schedule for this proceeding along with associated guidance. In CLI-98-13, 48 NRC , (slip op, at 12-13) (July 29, 1998), the Commission took notice of ,

this scheduling order and, while declining to make any )

adjustments at this juncture, advised the Board and the parties to pay heed to CLI-98-12, 48 NRC (July 28, 1998)

(63 Fed. Reg. (1998)), its recent policy statement on j the conduct of adjudicatory proceedings.

j In the context of our current consideration of several parties' comments on the Board's June 29 issuance, we invite the parties on or before Monday, Aucust 10. 1998, to file any further comments they may have on that schedule and 9908030032 990731 ~ t l PDR ADOCK 07200022 s C PDR .a ew

_2 -

associate guidance in light of the Commission's July 28

-policy statement, a copy of which is provided as Attachment I hereto.

The filings permitted under this memorandum and order should be served on the Board, the Office of the Secretary, and: counsel for the other parties by facsimile transmission, e-mail, or other means that will ensure receipt by.close of business (4 :30 p.m. EDT) on the day of filing. Egg L Licensing-Board Memorandum and Order (Initial Prehearing Order) (Sept. 23 1997) at 5-6 (unpublished); . Licensing

j. ' Board Memorandum and Order (Additional Guidance on Service Procedures)- (Nov. 19, 1997) (unpublished).

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING- BOARD *

. c..J2. k, G. Paul Bollwerk, III

! ADMINISTRATIVE JUDGE i

Rockville, Maryland July 31, 1998 L _

L

Copies of this memorandum and order and the -

accompanying attachment were sent this date to counsel for .

the applicant Private Fuel' Storage, L.L.C.,.and to counsel l for interveners Skull Valley Band lof Goshute Indians,.Ohngo Gaudadeh Devia, Confederated Tribes.of the Goshute Reservation, Castle Rock Land and Livestock, L.C./ Skull Valley Company, LTD., and the State of Utah by Internet e-mail transmission; and to counsel for the NRC staff by e-mail through the agency's wide area network system.

L- _____ - - - _ _ - - _ - - - _ - - - - _ _ - _ - - - _ - - _ - - - - - - - - --- - - - - - - - - - - - - - - - - --

s s

l' hTTACHMENT 1 1

I i

I I

I

(: 0; " C , p , .

'- -- a .-..: _ .

~ '

_ ,7 7590-01-P

~

f C NUCLEAR REGULATORY COMMISSION Policy on Conduct Of Adjudicatory Proceedings, Policy Statement AGEMCY: Nuclear Regulatory Commission.

ACTION: Policy Statement: Update.

SUMMARY

The Nuclear Regulatory Commission (Commission) has reassessed and updated its policy on the conduct of adjudicatory proceedings in view of the potential institution of a number of proceedings in the next few years to consioer applications to renew reactor operating licenses, to reflect restructuring in the electric utility industry, and to license waste storage facilities.

f 1

i DATES: This policy statement is effective on [date of publication in the Eederal Register), j while comments are being received. Comments are due on or oefore [60 days after publication in the Federal Register).

ADDRESSES: Send written comments to: The Secretary of the Commission, U.S.

Nuclear Regulatory Commission, Washington, DC 20555, ATTN: Rulumakings and Adjudications Staff. Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm, Federal workdays. Copies of comments received may be i examined at the NRC Public Documern Room,2120 L Street, NW. (Lower Level), Washington, l DC.

L l

l l

j- l FOR FURTHER INFORMATION CONTACT: Robert M. Weisman, Litigation Attorney, U.S. Nuclear Regulatory Commission, Washington, DC 20555, (301) 415-1696.

l l

STATEMENT OF POLICY ON CONDUCT OF ADJUDICATORY PROCEEDINGS CLl-98-12

! l. INTRODUCTION As part of broa' der efforts to improve the effectiveness of the agency's programs and processes, the Commission has critically reassessed its practices and procedures for l conducting adjudicatory proceedings within the framework of its existing Rules of Practice in 10 CFR Part 2, primarily Subpart G. With the potentialinstitution of a number of proceedings in the next few years to consider applications to renew reactor operating licenses, to reflect restructuring in the electric utility industry, and to license waste storage facilities, such assessment is particularly appropriate to ensure that agency proceedings are conducted efficiently and focus on issues germane to the proposed actions under consideration. In its review, the Commission has considered its existing policies and rules governing adjudicatory proceedings, recent experience and criticism of agency proceedings, and innovative techniques used by our own hearing boards and presiding officers and by other tribunals.

Although current rules and policies provide means to achieve a promp* and fair resolution of proceedings, the Commission is directing its hearing boards and presiding officers to employ certain measures described in this policy statement to ensure the efficient conduct of l

proceedings.

I ' The Commission continues to endorse the guidance in its current policy, issued in 1981, on th'e conduct of adjudicatory proceedings. Statement of Policy on Conduct of Licensing

l l

Proceedings, Cl I 81-8,11 NRC 452 (May 20,1981); 46 FR 28533 (May 27,1981). The 1981 Ii policy statement provided guidance to the Atomic Safety and Licensing Boards (licensing boards) on the use of tools, such as the establishment and adherence to reasonable schedules and discovery management, intended to reduce the time for completing licensing proceedings i while ensuring that hearings were fair and produced adequate records. Now, as then, the Commission's objectives are to provide a fair hearing process, to avoid unnecessary delays in the NRC's review and hearing processes, and to produce an informed adjudicatory record that 1

supports agency decision making on matters related to the NRC's responsibilities for protecting public health and safety, the common defense and !,ecurity, and the environment. In this context, the opportunity for hearing should be a meaningful one that focuses on genuine issues and real disputes regarding agency actions subject to adjudication, By the same token, however, applicants for a license are also entitled to a prompt resolution of disputes concerning their applications. .

The Commission emphasizes its expectation that the boards will enforce adherence to j the hearing procedures set forth in the Commission's Rules of Practice in 10 CFR Part 2, as interpreted by the Commission. In addition, the Commission has identified certain specific approaches for its boards to consider implementing in individual proceedings, if appmpriate, to reduce the time for completing licensing and other proceedings. The measures suggested in this policy statement can be accomplished within the framework of the Commission's existing Rules of Practice. The Commission may consider further changes to the Rules of Practice as appropriate to enable additional improvements to the adjudicatory process.

l l

l l

s II. SPECIFIC GUIDANCE Cunent adjudicatory procedures and policies provide a latitude to the Commission, its licensing boards and presiding officers to instill discipline in the hearing process and ensure a prompt yet fair resolution of contested issues in adjudicatory proceedings, in the 1981 policy statement, the Commission encouraged licensing boards to use a number of techniques for effective case management including: setting reasonable schedules for proceedings; consolidating parties; encouraging negotiation and settlement conferences; carefully managing and supervising discovery; issuing timely rulings on prehearing matters; requiring trial briefs, pre-filed testimony, and cross-examination plans; and issuing initial decisions as soon as practicable after the parties file proposed findings of fact and conclusions of law. Licensing boards and presiding officers in current NRC adjudications use many of these techniques, and should continue to do so.

As set forth below, the Commission has identified several of these techniques, as applied in the context of the current Rules of Practice in 10 CFR Part 2, as well as variations in procedure permitted under the current Rules of Practice that licensing boards should apply to proceedings. The Commission also intends to exercise its inherent supervisory authorit/,

including its power to assume part or all of the functions of the presiding officer in a jven adjudication, as appropriate in the context of a particular proceeding. See, e.g., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLl-90-3, 31 NRC 219,229 (1990).

The Commission intends to promptly respond to adjudicatory matters placed before it, and such matters should ordinarily take priority over other actions before the Commissioners.

)

l

1. Hearing Schedules The Commission expects licensing boards to establish schedules for promptly deciding j l

the issues before them, with due regard to the complexity of the contested issues and the interests of the parties. The Commission's regulations in 10 CFR 2.718 provide licensing boards all powers necessary to regulate the course of proceedings, including the authority to set schedules, resolve discovery disputes, and take other action appropriate to avoid delay.

Powers granted under @ 2.718 are sufficient for licensing boards to control the supplementation of petitions for leave to intervene or requests for hearing, the filing of contentions, discovery, dispositive motions, hearings, and the submission of findings of fact and conclusions of law.

Many provisions in Part 2 establish schedules for various filings, which can be varied "as otherwise ordered by the presiding officer." Boards should exercise their authority under these options and 10 CFR 2.718 to shorten the filing and response times set forth in the regulations to .

the extent prsctical in a specific proceeding. In addition, where such latitude is not explicitly afforded, as well as in instances in which sequential (rather than simultaneous) filings are provided for, boards should explore with the parties all reasonable approaches to reduce response times and to provide for simultaneous filing of documents.

Although current r:gulations do not specifically address service by electronic means, licensing boards, as they have in other proceedings, should establish procedures for electronic filing with appropriate filing deadlines, unless doing so would significantly deprive a party of an opportunity to participate meaningfully in the proceeding. Other expedited forms of service of documents in proceedings niay also be appropriate. The Commission encourages the licensing boards to consider the use of new technologies to expedite proceedings as those technologies become available.

1.

l i

6-Boards should forego the use of motions for summary disposition, except upon a written finding that such a motion will likely substantially reduce the number of issues to be decided, or l_ ottwrwise expedite the proceeding. In addition, any evidentiary hearing should not commence before completion of the staff's Safety Evaluation Report (SER) or Final Environr.antal

~ Statement (FES) regarding an application, unless the presiding officer finds that beginning earlier, e.g., by starting the hearing with respect to safety issues prior to issuance of the SER,

! will indeed expedite the proceeding, taking into account the effect of going forward on the staff's ability to complete its evaluations in a timely manner. Boards are strongly encouraged to expedite the issuance of interlocutory rulings. The Commission further strongly encourages ,

presiding officers to issue decisions within 60 days after the parties file the last pleadings permitted by the board's schedule for the proceeding.

i

. Appointment of additional presiding officers or licensing boards to preside over discrete l

l issues simultaneously in a proceeding has the potential to expedite the process, and the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel (ASLBP) should consider this measure under appropriate circumstances. In doing so, however, the Commission expects the Chief Administrative Judge to exercise the authority to establish multiple boards only L if: (1) the proceeding incives discrete and severable issues; (2) the issues can be more >

expeditiously handled by multiple boards than by a single board; and (3) the multiple boards can conduct the proceeding in a manner that will not unduly burden the parties. Private Fuel ,

i Storage, L.L.C. (Private Fuel Storage Facility), CLI-98-7,47 NRC _ (1998).

The Commission itself may set milestones for the completion of proceedings, if the Commission sets milestones in a particular proceeding and the board determines that any  !

single milestone could be missed by more than 30 days, the licensing board must promp?y so  !

inform the Commission in writing. The board shouid explain why the milestone cannot be met u ___m -_____ . _ _ _ _ _ _ _ . _ _ _ . . _ _ _ . _ . _ _ _ _ . , - . _ _ . _ _ _ . _ . ,

.' 4 =

and what measures the board will take insofar as is possible to restore the proceeding to the

.]

overall schedule. . ,1 i

' 2. Parties' Obligations I

l-Although the Commission expects its licensing boards to set and adhere to reasonable

( schedules for the various steps in the hearing process, the Commission secognizes that the I

ocards will be unable to achieve the objectives of this policy statement unless the parties satisfy I' their obligations. The rarties to a proceeding, therefore, are expected to adhere to the time ,

frames specified in the Rules of Practice in 10 CFR Part 2 for filing and the scheduling orders in

< the proceeding. As set forth in the 1981 policy statement, the licensing boards are expected to take appropriate actions to enforce compliance with these schedules. The Commission, of .I E course, recognizes that the boards may grant extensions of time under some circumstances, but this should be done only when warranted by unavoidable and extreme circumstances.

Parties are also obligated in their filings before the board and the Commission to ensure that their arguments and assertions are supported by appropriate and accurate references to legal authority and factual basis, including, as appropriate, citation to the record. Failure to do so may result in material being stricken from the record or, in extreme circumstances, in a party being dismissed.

3. Contentions L Currently, in proceedings governed by the provisions of Subpart G, 10 CFR 2.714(b)(2)(iii) requires that a petitioner for intervention shall provide sufficient

)

j' information to'show that a genuine dispute exists with the applicant on a material issue of law or j l

l  !

c__________.______

t-L 8

fact.' The Commission has stated that a board may appropriately view a petitioner's support for its contention in a light that is favorable to the petitioner, but the board cannot do so by ignoring the requirements set forth in 2.714(b)(2). Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1,2, and 3), CLl-91-12,34 NRC 149,155 (1991). The Commission re-emphasizes that licensing boards should continue to require adherence to @ 2.714(b)(2), and that the burden of coming forward with admissible contentions is on their proponent. A contention's proponent, not the licensing board, is responsible for formulating the contention and providing the necessary information to satisfy the basis requirement for the admission of contentions in 10 CFR 2.714(b)(2). The scope of a proceeding, and, as a consequence, the scope of contentions that may be admitted, is limited by the nature of the application and pertinent Commission regulations. For example, with respect to license renewal, under the

, governing regulations in 10 CFR Part 54, the review of license renewal applications is confined to matters relevant to the extended period of operation requested by the applicant. The safety review is limited to the plant systems, structures, and components (as delineated in 10 CFR 54.4) that will require an aging maragement review for the period of extended operation or are subject to an evaluation of time-limited aging analyses. See 10 CFR 54.21(a) and (c),

54.29, and 54.30. In addition, the review of environmental issues is limited by rule by the generic findings in NUREG-1427, " Generic Environmental impact Statement (GEIS) for License Renewal of Nuclear Plants." See 10 CFR 55.71(d) and 51.95(c).

I "[A)t the contention filing stage [,] the factual support necessary to show that a genuine dispute exists need not be in affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion." Rules of Practice for Domestic Licensing Proceedings-Procedura/ Changes in the Hearing Process, Final Rule, 54 FR 33168, 33171 (Aug.

11,1989),

u .-._ . _ _ _ - _ - _ - - - - - _ .- __

f

• i

~

I Under tne Commission's Rules of Practice, a licensing board may consider matters on l its motion only where it finds that a serious safety, environmental, or common defense and ]

1 security matter exists.10 CFR 2.760a. Such authority is to be exercised only in extraordinary circumstances. If a board decides to raise matters on its own initiative, a copy of its ruling, setting forth in general terms its reasons, must be transmitted to the Commission and the General Counsel. Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, f Units 1 and 2), CLI-81-24,14 NRC 614 (1981). The board may not proceed further with sua .

1 sponte issues absent the Commission's approval. The scope of ' particular proceeding is limited to the scope of the admitted contentions and any issues the Commission authorizes the board to raise sua sponte.

Currently.10 CFR 2.714a allows a party to appeal a ruling on contentions only if (a) the order wholly denies a petition for leave to intervene (i.e., the order denies the petitioner's standing or the admission of all of a petitioner's contentions) or (b) a party other than the petitioner alleges that a petition for leave te intervene or a request for a hearing should have been wholly denied. Although the regulation reflects the Commission's general policy to minimize interlocutory review, under this practice, some novel issues that could benefit from early Commission review will not be presented to the Commission. For example, matters of first impression involving interpretation of 10 CFR Part 54 may arise as the staff and licensing board begin considering applications for renewal of power reactor operating licenses.

l Accordingly, the Commission encourages the licensing boards to refer rulings or certify I questions on proposed contentions involving novel issues to the Commission in accordance I

with 10 CFR 2.730(f) early in the proceeding. In addition, boards are encouraged to certify novellegal or policy questions related to admitted issues to the Commission as early as possible in the proceeding. The Commission may also exercise its authority to direct I

t

5 certification of such particular questions under 10 CFR 2.718(i). The Commission, however, will evaluate any matter put before it to ensure that interlocutory review is warranted.

4. Discovery Management Efficient management of the pre-trial discovery process is critical to the overall progress of a proceeding. Because a great deal of information on a particular application is routinely placed in the agency's public document rooms, Commission regulations already limit discovery againd the staff. See, e.g.,10 CFR ' 720(h),2.744. Under the existing practice, however, the staff frequently agrees to discovery without waiving its rights to object to discovery under the rules, and refers any discovery requests it finds objectionable to the board for resolution. This l

practice remains acceptable.

Application in a particular case of procedures similar to provisions in the 1993 amendments to Rule 26 of the Federal Rules of Civil Procedure or informal discovery can improve the efficiency of the discovery process among other parties. The 1993 amendments to Rule 26 provide, in part, that a party shall provide certain information to other parties without l l

waiting for a discovery request. This information includes the names and addresses, if known, i of individuals likely to have discoverable information relevant to disputed facts and copies or descriptions, including location, of all documents or tangible things in the possession or control of the' party that are relevant to the disputed facts. The Commission expects the licensing boards to order similar disclosure (and pertinent updates) if appropriate in the circumstances of l individual proceedings. With regard to the staff, such orders shall provide only that the staff identify the witnesses whose testimony the staff intends to present at hearing The licensing i boards should also consider requiring the parties to specify the issues for which discovery is necessary, if this may narrow the issues requiring discovery.

l f

l

6 Upon the board's completion of rulings on contentions, the staff will establish a case file containing the application and any amendments to it, and, as relevant to the application, any NRC report and any correspondence between the applicant and the NRC. Such a case file should be treated in the same manner as a hearing file established pursuant to 10 CFR 2,1231.

Accordingly, the staff should make the case file available to all parties and should periodically update it.

Except for establishment of the case file, generally the licensing board should suspend dicovery against the staff until the staff issues its review documents regarding the application.

Unless the presiding officer has found that starting discovery against the staff before the staff's review documents are issued will expedite the hearing, discovery against the staff on safety issues may commence upon issuance of the SER, and discovery on environmentalissues upon issuance of the FES. Upon issuance of an SER or FES regarding an application, and consistent with such limitations as may be appropriate to protect proprietary or other properly I

withheld information, the staff should update the case file to include the SER and FES and any j l

I supporting documents relied upon in the SER or FES not already included in the file.

' The foregoing procedures should allow the boards to set reasonable bounds and schedules for any remaining discovery, e.g., by limiting the number of rounds of interrogatories 1 or depositions or the time for completion of discovery, and thereby reduce the time spent in the prehearing stage of the hearing process. In particular, the board should allow only a single round of discovery regarding admitted contentions related to the SER or the FES, and the discovery respective to each document should commence shortly after its issuance.

l i

j i

i i

• I 111. CONCLUSION The Commission reiterates its long-standing commitment to the expeditious completion of adjudicatory proceedings while still ensuring that hearings are fair and produce an adequate record for decision. The Commission interds to monitor its proceedings to ensure that they are being concluded in a fair and timely fashion. The Commission will take action in individual proceedings, as appropriate, to' provide guidance to the boards and parties and to decide issues in the interest of a prompt and effective resolution of the matters set for adjudication.

Dated at Rockville, Maryland, this 28th day of July,1998.

For the Nuclear Regulatory Commission.

N TI.Lx em -

~Annet'te Vietti-Cook, Assistant Secretary of the Commission.

l i.

f l

UNITED STATES OF AMERICA l

NUCLEAR REGULATORY COMMISSION In the Matter of 1 J

PRIVATE FUEL STORAGE, LLC Docket No.(s) 72-22-ISFSI 1 (Independent Spent Fuel Storage Installation) 1 CERTIFICATE OF SERVICE

)

I hereby certify that copies of the foregoing LB MEMO AND ORDER DTD 7/31 have been served upon the following persons by U.S. mail, first class, except i as otherwise noted and in accordance with the requ4ements of 10 CFR Sec. 2.712. j Administrative Judge Office of Commission Appellate G. Paul Bollwerk, III, Chairman Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge Jerry R. Kline Peter S. Lam Atomic Sa7ety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Sherwin E. Turk, Esq.

Catherine L. Marco, Esq. Diane Curran, Esq.

Office of the General Counsel Harmon, Curran, Spielberg & Eisenberg Mail Stop 15 B18 2001 S Street, N.W., Suite 430 U.S. Nuclear Regulatory Commission Washington, DC 20009 Washington, DC 20555 l

Martin S. Kaufman, Esq. Joro Walker, Esq. .

Atlantic Legal Foundation Land and Water Fund of the Rockies 205 E. 42nd St. 165 South Main, Suite 1 New York, NY 10017 Salt Lake City, UT 84111

l. l 1

l t 1 1

Docket No.(s)72-22-ISFSI LB MEMO AND ORDER DTD 7/31 Denise Chancellor, Esq.

Assistant Attorney General Jay E. Silberg, Esq.

Utah Attorney General's Office Shaw, Pittman, Potts and Trowbridge 160 East 300 South, 5th Floor 2300 N Street, NW P.O. Box 140873 Washington, DC 20037 Salt Lake City, UT 84114 John Paul Kennedy, Esq. Clayton J. Parr, Esq.

Confederated Tribes of the Goshute Castle Rock, et al.

Reservation and David Pete Parr, Waddoups, Brown, Gee & Loveless 1385 Yale Avenue- 185 South State Street, Suite 1300 Salt Lake City, UT 84105 Salt Lake City, UT 84111 l Danny Quintana, Esq. Richard Wilson l

Skull Valley Band of Goshute Indians Department of Physics Danny Quintana & Assocs., P.C. Harvard University 50 West Broadway, Fourth Floor Cambridge, MA 02138 Salt Lake City, UT 84101 i Dated at Rockville, Md. this 31 day of July 1998 DTfice of the Secreta 19 of the CoWnission i

l i

l _